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HomeMy WebLinkAboutC23-051 ECHDA_ECHO HousePROPERTY MANAGEMENT AGREEMENT BETWEEN EAGLE COUNTY, COLORADO– EAGLE COUNTY REGIONAL AIRPORT, ECHO HOUSE AT 2421 COOLEY MESA ROAD AND EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY THIS AGREEMENT is effective as of _________________, by and between EAGLE COUNTY, COLORADO (hereinafter called “Owner”) and the EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, a public body corporate and politic (hereinafter called “Manager”). WHEREAS, Owner owns the property located at 2421 Cooley Mesa Road, Gypsum, Colorado consisting of six (6) apartment units and associated facilities ("Premises"); and WHEREAS, the Owner desires to have the project managed by competent professionals; and WHEREAS, Manager has the personnel and resources necessary to competently and professionally manage the multifamily residential apartment complex and has familiarized itself with the Premises, including its physical condition; and WHEREAS, Owner and Manager desire to operate the Premises in a manner which provides a substantial benefit to Eagle County workforce and persons of low income; and WHEREAS, Owner wishes to obtain the benefits of Manager’s expertise in the field of real estate management by relinquishing to Manager control and discretion in the operation, direction, management and supervision of the Premises subject to the terms and provisions of this Agreement, and Manager for a fee agrees to assume said control and discretion in the operation, management and supervision of the Premises on behalf of Owner. NOW, THEREFORE, in consideration of the mutual covenants herein contained and of other good and valuable consideration, the parties hereto agree as follows: ARTICLE 1 APPOINTMENT Owner hereby contracts with Manager to manage, operate, direct and supervise the Premises on behalf of Owner and to provide services as required under Article 6 of this Agreement. ARTICLE 2 TERM Subject to and upon the terms and conditions set forth herein, or in any exhibit or addendum hereto, this Agreement shall commence on December 1, 2022, and shall continue in force, ending on December 31, 2024, subject, however, to the termination provisions in Article 13. DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 2/15/2023 2 ARTICLE 3 RELATIONSHIP All actions by Manager in performing its duties and providing services pursuant to this Agreement shall be for the account of the Owner. With the exception of the exclusions outlined in Article 11, Owner agrees to be responsible for all costs, expenses and disbursements incurred by Manager, consistent with Section 7.2, in providing management and operational services hereunder, such as, for example, but not limited to, contracts for landscaping or maintenance services and orders for supplies and equipment. ARTICLE 4 DELEGATION AND ASSIGNABILITY Manager shall have the right to delegate its responsibilities under this Agreement to employees of Manager or to engage independent contractors for performance of any part of the services to be provided hereunder. Neither the Owner, nor the Manager, shall assign all or any part of this Agreement without the prior written consent of the other parties to this Agreement. ARTICLE 5 SERVICES TO BE PERFORMED BY OWNER Owner shall be responsible for exterior maintenance and upkeep of the Premises, including, but not limited to, snow removal, landscaping and mowing. These services are to be provided by the Eagle County Government Facilities Department. ARTICLE 6 SERVICES OF MANAGER 6.1 Management and Operation. The Manager shall manage, operate and maintain the Premises in a manner normally associated with the management and operation of a reasonable quality apartment project and in a manner reflective of the standards set forth by the real estate management industry. Manager’s duties shall be limited to leasing, rent collection and deposits, and simple on-call maintenance services. Simple on-call maintenance services will consist of repairs and fixes which do not require the specialized skill of a professional, tradesperson, or other expert. In the event a repair requires such specialized skill or higher expertise, Manager may outsource the repair at Owner’s expense. 6.2 Employees. The Manager shall have in its employ at all times a sufficient number of capable employees to enable it to properly and safely manage, operate and maintain the Premises. All matters pertaining to the employment, supervision, compensation, promotion and discharge of such employees are the responsibility of the Manager. 6.3 Intentionally omitted. DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 3 6.4 Collection of Receivables. Manager shall use reasonable and diligent efforts -- including collection suits and proceedings, but subject to Owner’s prior approval -- to collect promptly all rents (including laundry income and all other income as may be applicable to the Premises) and other charges which may become due at any time from any tenant or from others for services provided in connection with or for the use of the Premises or any portion thereof. Manager shall collect and identify any income due Owner from miscellaneous services provided to tenants or the public, including, but not limited to, cleaning income, tenant storage and coin operated machines of all types (e.g., vending machines, etc.). All monies so collected shall be deposited in the Operating Account. All legal expenses outside of an approved budget and anticipated in bringing an approved suit or proceeding shall be submitted to Owner for its written approval in advance. In connection with such suits or proceedings, only legal counsel designated by Owner shall be retained. Manager shall not write off any income items without prior approval of Owner. 6.5 Leasing. Manager shall be responsible for the signing the leases with prospective tenants designated by Owner on a form acceptable to Owner, Owner’s approval of the form of lease shall not unreasonably be withheld. Manager shall have the specific authority to negotiate leases and rental agreements in connection with amendments, renewals, extensions, modification or cancellation of existing leases and preparation of new leases, and any successor contract or other low and moderate income guidelines approved by Owner from time to time. Manager shall make every reasonable effort to obtain and keep desirable tenants for the Premises and perform whatever services may be required in connection with the above mentioned negotiations, including the establishment, implementation and coordination of a marketing plan. 6.6 Repairs, Decoration, Alterations. Manager will cause the Premises to be maintained and repaired in accordance with state and local codes in a condition acceptable to Owner. Without limiting the generality of the foregoing, Manager shall institute and supervise all ordinary repairs, decorations and alterations, including the administration of a preventive maintenance program for all mechanical, electrical and plumbing systems and equipment. Notwithstanding the generality of the foregoing, Manager shall not be responsible for instituting or supervising major construction and rehabilitation projects except as may be provided in a separate agreement with Owner. 6.7 Operating Activities. Manager shall institute and supervise all operational activities of the Premises, such as, but not limited to, the following: (a) Intentionally omitted; (b) Responsibility and supervision for any necessary maintenance or repairs to the Premises; and (c) Any other activity incidental to the normal operation of an apartment project. 6.8 Intentionally omitted. 6.9 Intentionally omitted. DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 4 6.10 Intentionally omitted. 6.11 Intentionally omitted. 6.12 Bank Relationship. Manager shall handle operational banking matters related to its contractual responsibility. Owner shall designate which bank(s) or financial institutions Manager shall use in discharging this responsibility. The parties agree that the current Eagle County Airport Terminal (“ECAT”) bank account should be utilized for rent collection. 6.13 Intentionally omitted. 6.14 Maintenance of Records. Manager shall maintain complete and identifiable records, and files on all matters pertaining to Manager’s contractual responsibility. Such records, and records and financial reports pursuant to Section 6.18, shall be available to the Owner during business hours upon two (2) days of written notice. 6.15 Manager Availability. Manager shall maintain 24-hour availability for emergencies. 6.16 Intentionally omitted. 6.17 Owner Communications. Manager shall be available for communication with Owner and will keep Owner advised of items affecting the Premises. Within five (5) days after Manager receives a certified or registered letter from any tenant, a copy will be sent to Owner. 6.18 Financial Reports. Owner shall be responsible for financial reporting and record keeping, however: (a) Manager, in the conduct of its responsibilities to Owner as described in Article 6, shall maintain adequate and separate books and records for the Premises in accordance with generally accepted accounting principles, which shall be supported by sufficient documentation to ascertain that said entries are properly and accurately recorded. Such books and records shall be maintained by Manager at a location acceptable to Owner. Manager shall maintain such control over accounting and financial transactions as is reasonably required to protect Owner’s assets from theft, error or fraudulent activity. (b) Intentionally omitted. (c) The Manager shall furnish rental collection reports for the Premises of all transactions occurring from the first day of the prior month to the last day of the prior month. (d) As additional support to the monthly financial statement, Manager shall make available to the Owner, upon request, copies or originals of the following to the extent Manager maintains such records: 1. All bank statements, bank deposit slips and bank reconciliations; DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 5 2. Detailed cash receipts and disbursements records; 3. Detailed trial balances; 4. Paid invoices; 5. Summaries of adjusting journal entries; and 6. Supporting documentation for payroll, payroll taxes and employee benefits. (e) If necessary, Manager shall maintain liaison with Owner’s accountant. 6.19 Tenant Security Deposits. If collected, security deposits shall be kept by Manager in a bank or financial institution approved by Owner, and in accordance with laws applicable to tenant security deposits. Manager shall maintain detailed records of all security deposits and such records will be open for inspection by Owner. 6.20 Books, Cards, Etc. All books, cards, registers, receipts, documents, disks, tapes and any other papers or electronic records connected with the operation are the sole property of Owner, and Manager will not publish, transmit or release said information to any party unless required by the Colorado Open Records Act in which event Manager will provide notice of such disclosure to Owner. ARTICLE 7 MANAGER’S AUTHORITY 7.1 Manager’s Authority. Manager’s authority is expressly limited to the provisions provided herein or as may be amended in writing from time to time by Owner and mutually agreed to in writing. 7.2 Intentionally omitted. 7.3 Intentionally omitted. 7.4 Contracts. In the event Manager identifies any items for which a contract may be needed, it will notify Owner. Owner will make the final determination of whether a contract is required, and will enter into a contract in a form satisfactory to Owner. Owner will share all contracts related to the Premises with the Manager. 7.5 Intentionally omitted. 7.6 Intentionally omitted. 7.7 Emergency. In case of emergency, Manager may make expenditures for repairs which exceed budget or prior approvals from Owner without prior written approval if it is necessary to prevent damage or injury. Owner must be informed of any such expenditure within the next five (5) business days. DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 6 7.8 Structural Changes. The Owner expressly withholds from the Manager any power or authority to make any structural changes in any building or to make any other major alterations or additions in or to any such building or equipment therein, or to incur any expense chargeable to the Owner other than expenses related to exercising the express powers above vested in the Manager without the prior written direction of the Owner. 7.9 Competent Employees. Manager is specifically authorized and directed by Owner to employ and supervise competent employees to adequately and reasonably maintain and protect the Premises. ARTICLE 8 INSURANCE 8.1 Owner to Obtain Adequate Insurance. Owner shall maintain at its expense insurance in Owner’s name and at Owner’s expense, insuring against physical damage, liability for loss against business interruption, and damage or injury to property or persons of third persons which may arise out of the occupancy, management, operation or maintenance of the Premises. Owner shall be solely responsible for determining the amounts and types of insurance to be carried. Manager shall: (a) notify Owner within twenty-four (24) hours after Manager receives notice of any such loss, damage or injury; and (b) take no action (such as admission of liability) which might bar Owner from obtaining any protection afforded by any policy Owner may hold or which might prejudice Owner in its defense to a claim based on such loss, damage or injury. 8.2 Information Furnished. The Manager shall furnish whatever information is requested by Owner for the purpose of establishing the placement of insurance coverages and shall aid and cooperate in every reasonable way with respect to such insurance and any loss thereunder. Owner shall include in its hazard policy covering the Premises, personal property, fixtures and equipment located thereon. Manager shall have no obligation to separately insure the Premises. Manager will maintain insurance covering its operations under this Agreement. 8.3 Subcontractor’s Insurance. Manager shall require that subcontractors brought onto the Premises have insurance coverage. The Manager shall obtain and keep on file a Certificate of Insurance which shows that the subcontractor is insured. ARTICLE 9 OWNER’S RIGHT TO AUDIT 9.1 Owner’s Right to Audit. Owner reserves the right to conduct examinations, without notification, of the books and records maintained for Owner by Manager no matter where books and records are located. Owner also reserves the right to perform any and all additional audit tests relating to Manager’s activities; either at the Premises, or at any office of the Manager, provided such audit tests are related to those activities performed by Manager for Owner. DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 7 9.2 Intentionally omitted. 9.3 Correction of Discrepancies. Should Owner discover either weakness in internal control or errors in record keeping, Manager shall correct such discrepancies either upon discovery or within a reasonable period of time. Manager shall inform Owner in writing of the action taken to correct such audit discrepancies. Any and all such audits conducted by Owner will be at the sole expense of Owner. ARTICLE 10 BANK ACCOUNTS 10.1 Operating Account. The Manager shall deposit on a regular basis all rents and other funds collected from the operation of the Premises for the purpose of paying operating expenses in a bank approved by Owner. 10.2 Security Deposits. Manager shall keep and maintain security deposits in a separate account pursuant to Section 6.19 herein should it be so requested by Owner. 10.3 Change of Banks. Owner may direct the Manager to change a depository bank or the depository arrangements for its respective Premises. 10.4 Access to Accounts. Owner shall be permitted access through additional signature cards if requested. ARTICLE 11 PAYMENT OF EXPENSES 11.1 Expenses Paid From Operating Account. The following costs are to be paid directly from the Operating Account: (a) Any and all costs necessary to the management, operation, leasing and maintenance of the Premises that are covered within the approved budgetary guidelines as outlined in Articles 6 and 7. (b) All operations and accounting expenses incurred by Manager in the execution of Manager’s responsibilities pursuant to the terms of this Agreement, the initial set-up and continuing costs of the electronic data processing, and the computer service costs of the monthly operating report, including both the summary and detailed accounts. (c) Cost of all non-standard printed forms, notices, checks, invoices, purchase orders, reports, envelopes, etc. required for compliance with the terms and conditions of this Agreement, or as may be requested by Owner; the cost of all audits required by the terms of this Agreement. (d) Any other costs approved in writing by Owner to Manager. (e) Compensation to Manager as set forth in Article 19 hereof. DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 8 ARTICLE 12 INSUFFICIENT INCOME If at any time the gross income (or cash in the Operating Account) from the Premises shall not be sufficient to pay the bills and charges which may by incurred with respect to the Premises, the Manager shall notify Owner immediately upon first projection or awareness of a cash shortage or pending cash shortage and Owner and Manager shall jointly determine payment priority. Manager shall not be obligated to pay said expenses and charges from its own account. After Manager has paid, to the extent of available funds, all bills and charges based upon the ordered priorities set jointly by Owner and Manager, Manager shall submit to Owner a statement of all remaining unpaid bills. Owner shall immediately and without delay make all reasonable efforts to provide sufficient monies to pay any unpaid expenses before they become delinquent. ARTICLE 13 TERMINATION 13.1 Termination for Cause by Owner. Owner may terminate this contract upon fifteen (15) days written notice with cause. Cause shall be defined as the occurrence of any of the following events: (a) (i) the filing of a voluntary petition in bankruptcy; (ii) being adjudicated as bankrupt or insolvent; (iii) filing of any merger petition or seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency, or other relief for debtors, whether federal or state; (iv) Manager seeking, consenting to, or acquiescing in the appointment of any trustee, receiver, conservator or liquidator of Manager, or of all or any substantial part of its properties (the terms “acquiescing,” as used herein, shall be deemed to include but not be limited to the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within the time specified by law); (v) a court of competent jurisdiction entering an order, judgment or decree approving a petition filed against Manager seeking any reorganization arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief of debtors, whether federal or state, and Manager either consents to or acquiesces (as hereinabove defined) in the entry of such order, judgment or decree, or such order, judgement or decree shall remain unvacated or unstayed for an aggregate of sixty (60) days from the date of entry thereof; or (vi) the appointment of a trustee, receiver, conservator or liquidator of Manager of all or any substantial part of its properties without the consent of or acquiescence of Manager which remains unvacated or unstayed for an aggregate of sixty (60) days; or (b) (i) Manager fails to perform any of its services in the manner or within the time required herein; or (ii) Manager commits or permits a breach of or default in any of its duties, liabilities or obligations hereunder. 13.2 Termination for Cause by Manager. Manager may terminate this contract upon fifteen (15) days written notice with cause. Cause shall be defined as the occurrence of any of the following DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 9 events: (a) (i) Owner fails to perform any of its duties under this Agreement or within the time required herein; or (ii) Owner commits or permits a breach of or default of any of its duties, liabilities or obligations hereunder. 13.3 Termination for Convenience. Either party may terminate this contract for its convenience and without cause upon ninety (90) days written notice to the other party. 13.4 Manager’s Right to Compensation: Final Accounting. If this Agreement is terminated by any party as provided above, it is further agreed: (a) Notwithstanding any other provision herein to the contrary, the Manager’s right to compensation shall cease as of the effective date set forth in the notice of termination, except that Manager shall be entitled to all monies owed to Manager by Owner up to the effective date of termination. (b) That Manager’s powers and authority under this Agreement shall cease and terminate at the effective date set in the notice of termination. (c) Final Accounting. Manager shall deliver to Owner the following with respect to the Premises: (1) Intentionally omitted. (2) Any balance or monies of Owner held by Manager with respect to the Premises, shall be delivered immediately after such effective termination date and thereafter promptly after same are received by Manager. (3) All records, contracts, leases, receipts for deposits, unpaid bills and other papers or documents which pertain to the Premises also shall be delivered immediately upon such effective termination date. ARTICLE 14 COOPERATION 14.1 Should any claims, demands, suits or other legal proceedings be made or instituted by any person against Owner which arise out of any of the matters relating to the Agreement, the Manager shall give Owner all pertinent information and reasonable assistance in the defense or other disposition thereof, at the sole expense of Owner. This obligation of Manager shall survive the termination or expiration of this Agreement. 14.2 Upon termination of this Agreement, Manager will give to Owner all books, cards, registers, receipts, documents, tapes, disks and other information with respect to the Project and the management thereof which Manager has in its possession and shall cooperate, as requested by Owner, in the transition to a new manager of the Premises. DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 10 14.3 Owner shall cooperate in good faith and shall timely respond to requests for information, approvals or otherwise from Manager in connection with this Agreement ARTICLE 15 MANAGER’S LIABILITY 15.1 Except as otherwise stated herein, Manager shall not in the performance of this Agreement, be liable to Owner or to any other person including Owner’s tenants for any act or omission of any agent or employee of Owner or Manager, or its subsidiaries or affiliates, unless the same results from gross negligence or willful misconduct of the Manager, its officers or employees. 15.2 Notwithstanding any other provisions of this Agreement, in no event shall Owner make any claim against Manager, or its affiliates or subsidiaries on account of any alleged errors of judgment made in good faith in connection with the operation of the Premises hereunder by Manager or the performance of any advisory or technical services provided by or arranged by the Manager. 15.3 Owner shall not object to any expenditure made by Manager in good faith in the course of its management of the Premises or in settlement of any claim arising out of the operation of the Premises unless such expenditure is specifically prohibited by this Agreement. ARTICLE 16 REPRESENTATION Owner hereby represents that in entering into this Agreement, Owner understands that no guaranty is made or implied by Manager, or any of its affiliated companies as to the future financial success of the Premises. ARTICLE 17 REASONABLE CONSENT Whenever in this Agreement the consent or approval of Manager or Owner is required, such consent or approval shall not be unreasonably withheld. ARTICLE 18 NOTICES All notices, demands, consents and reports provided for in this Agreement shall be in writing and shall be given to the appropriate Owner or Manager at the address set forth below or at such other address as they may specify hereafter in writing: MANAGER: Eagle County Housing and Development Authority PO Box 850 DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 11 Eagle, CO 81631 Attn: Kim Bell Williams, Executive Director Email: kim.williams@eaglecounty.us with a copy to: Eagle County Attorney’s Office P.O. Box 850 Eagle, Colorado 81631-0850 atty@eaglecounty.us OWNER: Eagle County Airport Terminal Po Box 850 Eagle, CO 81631 Email: david.reid@eaglecounty.us Such notice or other communication may be by electronic mail or may be mailed by United States mail, postage prepaid, and may be deposited in a United States Post Office or a depository for the receipt of mail regularly maintained by the post office. Such notices, demands, consents and reports may also be delivered by hand, or by any other method or means permitted by law. Notice delivered by mail shall be deemed given the third business day after deposit in the United States mail. DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 12 ARTICLE 19 COMPENSATION By the 25th day of each month, the Manager shall receive remuneration for its services in managing the Premises for such month as follows: A Flat Fee in the amount of $700.00 per month is to be paid in the form of a management fee. This Management Fee includes on-call maintenance hours from Eagle County Housing and Development Authority’s maintenance staff and will not be billed at an additional rate. This fee may be increased from time to time upon mutual written agreement of the parties. Further, Property Manager and Maintenance Technicians may perform maintenance services at a rate of fifty dollars ($50) per hour if not completed by Owner and their staff. In the event that a maintenance item is not after hours or an emergency and a third-party contractor can perform the maintenance work at a less expensive rate, Manager will attempt to engage a contractor to perform the work in the best interests of the Premises. To the extent that rental income from the property in any month is not sufficient to pay the property management fee and maintenance costs due under this Agreement, such fees shall accrue without interest until rental income is available, at which time accrued portions of the fee and maintenance costs shall be then due and payable and in any event shall be due in full upon termination or expiration of this Agreement. ARTICLE 20 MISCELLANEOUS 20.1 Construction. The plural may include the singular and the singular may include the plural and this Agreement shall be interpreted in this regard as the context may require. 20.2 Amendment. Except as otherwise herein provided, any and all amendments, additions or deletions to this Agreement shall be null and void unless approved by the parties affected thereby in writing. 20.3 Headings. All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement. 20.4 Complete Agreement. This Agreement supersedes and takes the place of any and all previous negotiations, representations, and oral agreements between the parties hereto. 20.5 Waiver. The waiver of any of the terms and conditions of this Agreement on any occasion or occasions shall not be deemed as waiver of such terms and conditions on any future occasion. 20.6 Binding Nature. This Agreement shall be binding upon and inure to the benefit of Owner, each of its successors and/or permitted assigns, and shall be binding upon and inure to the benefit of Manager, and its permitted assigns. There shall be no third party beneficiaries to this Agreement. 20.7 State Law and Venue. This Agreement shall be construed, interpreted and applied in accordance with and shall be governed by, the laws applicable in the State of Colorado. Venue for any dispute arising from or related to this Agreement shall be in the courts of Eagle County, Colorado. DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5 13 20.8 Rebates. Manager agrees it will not collect or charge any undisclosed fee, rebate or discount, and if any such should be received by Manager, these will be credited to the account of the Owner. 20.9 Divisibility. In the event any Article or Section of this Agreement is deemed illegal or unlawful, said Article or Section shall be struck from this Agreement and all other Articles and Sections shall remain valid and in full effect. 20.10 Independent Contractor. This Agreement constitutes an agreement for performance of the Services by Manager as an independent contractor and not as an employee of Owner. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship between Manager and Owner except that of independent contractor. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year above written. OWNER: COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER By: ________________ Jeff Shroll, County Manager MANAGER: EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY By: ______________________________________ Kimberly Bell Williams, Executive Director DocuSign Envelope ID: 7DBCE657-1FDA-402D-B0BF-2B603A74E7C5